by Neil Gorsuch
Instead of trying to distinguish between institutional and personal harms, I wonder whether it might be more useful, at least as a tentative starting point, to focus on whether the action involves the lawyer intentionally doing harm to other persons and goods. As we’ve discussed, the lawyer generally serves a morally upright function by helping ensure that a client can access our justice system. In this way, the lawyer usually intends to help realize important ends for his client, including equal treatment and due process. To be sure, in vindicating a client’s lawful interests the lawyer also often does damage to someone else’s interests. Litigation is often a zero-sum game. But in acting to vindicate the client’s lawful interests, the lawyer does not intend to do any harm to the client’s opponent—this is merely an unintended consequence, if one that is foreseen or even inevitable.
Consider, for example, a client who comes to you contending she was injured by the defendant and seeking compensation for her medical bills. In seeking compensation from the other party, no doubt you will injure the other party’s interests and perhaps cause the other party serious emotional as well as financial trauma. But in doing all this you hardly intend to hurt the opposing party. You only intend to help vindicate your client’s lawful interest. That this is true is suggested by the following counterfactual hypothetical: If you could fully vindicate your client’s interest, obtain full compensation for her injuries, without hurting anyone else in the process, would that satisfy your purposes just as well? The answer here is emphatically yes. Injuring others, though it may be a consequence of your actions, is not part of your intent. And this occurs, as I alluded to before, because we live in a world where there are many upright ways to live life, and in pursuing one good you will sometimes inevitably do harm to other goods.
Under this line of reasoning, a lawyer may take a great many actions in aid of a client. But at least some important things are categorically ruled out as things a lawyer should not do. For example, suppose you file a colorable claim but do so with the purpose of inflicting damage to the other party, using the legal system as a sort of weapon to harm another. Note that the means you’re using are entirely lawful and you are entitled as a lawyer to use them. The claim is itself valid on the merits. But you harbor an ultimate purpose or end to hurt another person. If the analysis I’ve suggested holds, this is a no-go. The lawyer should not pursue the end purpose of harming others, even if the means he uses are institutionally permitted. It is, I think, for exactly this reason that the common law long ago developed torts like abuse of process.
Consider as well the fugitive slave law example. What if an antebellum client sought your assistance to recover a fugitive, claiming he is merely asserting a property interest protected by law? To vindicate your client’s property interest you must intentionally seek to place another person in chains. And you don’t just foresee the fugitive’s enslavement as a possibility, you intend it. It would, after all, frustrate your whole purpose in the case to see the fugitive slave remain a free person. Of course, we can hope that examples of such profoundly unjust laws are few and far between in a decent contemporary society. But we still might ask whether lawyers can be any more willfully blind to their possibility than Nazi field marshals.
Tonight, I have sought to suggest, at least as a starting point, that we have a duty to avoid taking actions for our clients that involve using means or ends that intentionally do harm to other persons or goods. This rule leaves considerable room for the lawyer to defend the client’s interests thoroughly, to interpose alternative defenses, to conduct vigorous cross-examinations. But it does not leave lawyers morally blameless whenever their clients tell them to do something. Saying “the client made me do it” isn’t a complete answer to the question of legal ethics. But if knowing this much might be a useful starting point, it’s also reasonable for you to ask, Where is the end point? Beyond refraining from intentionally harming others, when should a lawyer decline to follow his or her client off the moral cliff?
This is surely an important question, and no doubt a comprehensive answer would require an even longer talk than the one you’ve already had to endure. But it might be enough for the moment to say I suspect that most of the answer to that question lies in lessons we probably learned a long time ago. The Golden Rule, tolerance, civility, and self-discipline come to mind as some of the cardinal virtues of the good lawyer as well as the good person. As Dean Hellman observed, when you enter this profession you are likely to encounter some who will encourage you to unlearn these old truths. But just because you have a law degree doesn’t give you a license to forget what your grandmother taught you or what you learned in kindergarten. At the same time, I think it’s important to admit that we all make mistakes and go awry. And, yes, that most assuredly includes us judges. No one is perfect and all of us in this profession are probably more in need of penance than praise when it comes to ethics; few of us can afford to live in glass houses. The truth is, the ethical virtues take hard work and constant practice, trial, and, yes, error. In fact, in law as in life it is usually our mistakes that are our best teachers and make us wise.
Aristotle recognized all this. He said that ethics involves a state of character that exhibits itself in actions. On this view, something that involves not just belief but repetition, reinforcement, success, and constant learning from failure. You remember the old saying: Watch your actions, they become habits; watch your habits, they become character; watch your character, for it becomes your destiny. It’s not Aristotle but it’s very Aristotelean. And let me assure you, you will have many chances for practice in our shared profession. The ethical challenges will surely come and so will the chance to learn from your mistakes. It’s not possible to avoid either. But how you respond to them, what habits you develop over time, will make all the difference.
For me, a personal reminder of what I think we are all aspiring to as lawyers and judges lies in a scene from Robert Bolt’s play A Man for All Seasons when Thomas More is betrayed by his protégé, Richard Rich. After Rich testifies falsely at the trial against More, More sees Rich wearing a new chain of office—one that signifies Rich has become attorney general for the relatively small principality of Wales. More asks, “Why, Richard, it profits a man nothing to give his soul for the whole world…But for Wales[?]” I think it can be helpful to keep that scene in mind and maybe ask yourself when an ethical challenge arises: My soul for a trial? An appeal? Or some lousy discovery motion? At the end of the day, after all, your personal integrity—your state of character, as Aristotle would have it—is among the most valuable things in your possession. Not the money or the clients, the wins or the losses. The reward of ethical practice is the ease of mind you feel when you go to sleep, when you tell your children about your career, when you retire with a clear conscience.
TEN THINGS TO DO IN YOUR FIRST TEN YEARS AFTER GRADUATION
Having now reached the point in life where others think I have lived long enough and made mistakes enough to give at least some useful life advice, I’ve delivered my share of commencement addresses. The one below I gave at the Florida State University College of Law during my time on the Tenth Circuit. In writing the speech, I tried to re-create a list of the “top ten” things I wish someone had told me to try in my early years out of school.
When I was invited to speak with you, the question arose: What fascinating legal topic would new law school graduates want to hear about? Maybe the fine points of the rule against perpetuities? Perhaps the thrilling opinions I’ve written lately? But then I thought: Why spoil such a beautiful spring day? So how about a little more practical advice? With a nod to David Letterman, here’s a Top Ten List of Things You Should Do in Your First Ten Years After Graduation.
NUMBER 10: GET IN THE GAME.
Some of you will become corporate or appellate or public policy lawyers. And those are great and rewarding careers. But if I had to guess, most of you came to law school with at least a twi
tch of a desire to try cases, perhaps inspired by Boston Legal or Law & Order…or maybe misled by them. Whatever your ultimate specialty, trying a case from soup to nuts is one of the great thrills of the practice of law. And know this: You can do it. Sure, you’ve spent three years reading a lot of appellate opinions and scholarly articles. And saying you learned how to win a jury trial in law school is sort of like saying you learned how to play baseball from George Will’s book or Ken Burns’s documentary. But a trial isn’t rocket science. You don’t need to be sixty years old to be effective. If you’re willing to immerse yourself in the law and the facts of your case, and if you’re willing to take guidance from those who’ve been in the trenches before, there’s no reason why you can’t be an effective trial lawyer right out of the gate.
One of my last trials in private practice was a $20 million fraud dispute. I asked a lawyer three months out of a clerkship to help, gave her witnesses and arguments. She did a brilliant job….True, she didn’t sleep for a month….But she did do a brilliant job—and you can too.
Now, to be sure, standing up in court can be scary. I remember my first case in private practice. I was told to argue motions and prepare for trial an $80 million fraud claim. I had little idea what I was doing. Okay, no idea. But I had a great mentor and worked day and night. And when time came to go to court to argue this or that motion, I would often rent a car to drive the eighty miles to the county courthouse by myself. The other side would show up with a phalanx of lawyers. My knees were knocking.
NUMBER 9: LEARN TO WIN—AND LOSE—GRACIOUSLY.
The first part is the easier part. We can all at least seem gracious when we’re winning. The other part of the equation requires a lot more effort, and a sense of ethics. Ask the several prominent national lawyers who’ve been in the headlines recently for trying to bribe judges or pay off witnesses. They had glittering careers at the top of the profession, but their indictments for cutting ethical corners—being unwilling to lose graciously when the law required it—leave behind a stain on their careers that must be hard to bear. Cautionary tales for all of us.
What do I mean by ethics? Well, I do not mean the fill-in-the-bubble ethics from the professional ethics exam you will take. (You will hear the joke about that exam—the right answer seems always to be the second most ethical choice.) Instead, I mean what Aristotle meant by ethics—a state of character displayed in good, that is morally upright, actions.
You will face many ethical challenges in the practice of law. I guarantee it. If opposing counsel behaves inappropriately, you will be tempted to respond in kind. Your clients and colleagues may even encourage you to do so. And it’s easy to fall into the trap. No one is perfect after all; we are all human. And neither is the practice of law supposed to be a game of tiddlywinks. It is an adversarial process and disagreements are the reason why our profession exists. But it is possible to disagree without losing sight of your soul.
Consider. Opposing counsel shades facts or case holdings in his or her brief. How tempting is it to respond by calling that a “lie” rather than simply pointing out that counsel erred and then citing the true facts and law to the court? Or opposing counsel won’t produce basic materials in discovery, yet demands massive discovery from your client. Your client doesn’t want to incur the expense of providing discovery without getting something in return. How easy is it to refuse production and engage in a game of tit for tat? But at the end of the day, your integrity is among the most valuable things in your possession. So be sure always to ask yourself: Would your grandmother approve of your behavior?
NUMBER 8: TAKE A RISK.
I think you will find it mighty tempting to conform, to avoid saying or writing anything that might be controversial, and to stay in the same job forever. If you’re headed into private practice with a large firm, you will find the golden handcuffs are real. And they get tighter over time, as your income increases and you take on responsibilities for feeding other people, both at home and at the office. Nothing is wrong with that. It is the nature of life, and we all have obligations to take care of those who depend on us. We lawyers are a risk-averse lot. That’s why so many of us went to law school in the first place—because it was a “safe” option.
But don’t always succumb to the most obvious and comfortable path. You don’t want to find yourself headed into retirement wondering: What if you had run for office? Started your own law firm? Joined that nonprofit? Give those things a try. A law degree gives you a tremendous safety net, a marketability, even if your risk doesn’t always pan out. When I left law school, I thought about joining an established firm. Then a new and very small litigation shop approached me, one that few had heard of at the time. I was intrigued by the opportunity the firm offered for a young person to get loads of experience. But I wondered: What if this little shop didn’t make it? The answer I received from a good friend sticks with me: What’s the worst-case scenario? Give it a try for two years and if the firm fails, one of those big places will probably still have you. Good advice then. Good advice now. Taking a risk may mean anxiety along the way, but it will make you wildly happy if it succeeds and wiser if it fails.
NUMBER 7: SEE THE WORLD.
There are two great times in life to see the world: when you’re a poor student and don’t need the comforts, or when you retire and can afford them. In between, the demands of a busy career and even busier little ones running around make travel difficult. Ask any parent who has spent a long flight with a screaming child, trying to change a diaper while wedged into one of those airplane bathrooms.
If you haven’t had an opportunity to see a bit of the world, now’s your chance. Don’t wait until you’re sixty-five, or sixty-seven, or whatever it is….Heck, by the time you retire, Social Security will probably have you working until you’re eighty.
The simple fact is, most employers don’t care whether you start work in August or December after your graduation in May. But those few months could generate some of your fondest memories and best experiences in life. I took some time off after law school to study in England and wound up engaged to a British woman who is now my wife. The fortuity of a lifetime. Who knows where your travels might take you?
NUMBER 6: WRITE SOMETHING SIGNIFICANT.
Lawyers are writers. The written word is the dominant tool we use to persuade judges or close a deal. Doctors have their stethoscopes and scalpels. Engineers have their calculators and cranes. For better or worse, we have our laptops and legal briefs.
You will experience a lot in this profession, become an expert in a field, and a good deal of wisdom will come to reside in your heads. Please take the time at some point along the way to write it down. There’s no better way to share your learning with those who will follow you in the profession. And there’s no better way to educate the generalist judges who do not operate in your specialized field every day.
I suspect you will also find the process of writing something significant to be a great reward. Yes, writing is hard. It forces you to focus exactingly on the logic of your argument and it is a solitary job. But it is a rewarding one too. Contributing to the development of a field of law, or to the solution of a contemporary social problem—you will be surprised by the influence your written word can have.
NUMBER 5: PRO BONO IS PRO BONO PUBLICO—AND PRO BONO FOR YOU TOO.
You will find it easy enough to sell every hour of your professional time to companies or millionaires. They have their troubles, need your help, and will pay you well for it. But find the time to take on other clients. You can eliminate your fee or work out some creative alternatives. You will find the time spent representing worthy individuals and nonprofits incredibly rewarding. From those seeking asylum in this country, to criminal defendants proceeding pro se on appeal, to litigation work for nonprofits operating on a shoestring budget, all need (often desperately) access to the skills you’ve learned in law school. And helping them wil
l benefit you too. You will feel more grounded as a person, more a part of your community. And the psychic income is real: Most of these clients will be grateful for your help in ways that are maybe now hard even to imagine.
NUMBER 4: RELISH YOUR FRIENDSHIPS DEVELOPED HERE IN LAW SCHOOL.
It’s hard to pick out the best thing about law school—the professors, the time to think hard about new concepts and ideas, the opportunity to learn new skills. But maybe the best thing of all is your classmates. You’re surrounded by an amazing group of people who will go on to do great things and who have much to teach you. Among those at law school with me, as it turns out, were a future solicitor general of the United States, loads of law professors and judges, the head of the Republican Party, and a president of the United States. Many of these people became real friends; others by chance (and regrettably) I didn’t get to know as well; but what a collection of interesting people. So make the most of the chance to get to know your classmates while you have it and in the years to come relish your friendships from law school. They can become some of your most lasting treasures.